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tv   HAR Dtalk  BBC News  February 28, 2017 4:30am-5:01am GMT

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increase by 10%. the increase is likely to be paid for by cutting programmes, such as foreign aid and environmental protection. the president's proposal will meet opposition in congress from those who favour cutting the us budget deficit. the government in the philippines has confirmed that a militant group has murdered a german man they were holding hostage. abu sayyaf insurgents earlier released a video that appears to show the beheading ofjurgen kantner. last year the group pledged allegiance to the islamic state network. rainstorms and landslides are bringing disruption to peru and chile. authorities in the chilean capital, santiago, have shut off drinking water to four million people because of pollution. at least three people have been killed and several are missing after rivers ove rflowed and bridges were washed away. now it's time for hardtalk. welcome to hardtalk, i'm stephen sackur.
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the trump presidency promises to be a fascinating test of the resilience of the system of government crafted by america's founding fathers. the new president has already slammed the courts for overstepping their authority in blocking his so—called travel ban. a new executive order on the matter is imminent. my guest today is donald verrilli, us solicitor general under barack obama. does the constitution ensure that the white house is always subject to, not above, the law? donald verrilli, welcome to hardtalk.
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thank you, stephen, it's good to be here. let's start with a personal perspective. having served five years as obama's solicitor general, how painful is it for you to watch donald trump pledging to undo so much of the legislative executive legacy left behind by barack obama, and of course a legacy that you defended? well, had you asked me that question two months ago i probably would have said extremely. but as time has passed, i think the resilience of the achievements of the obama administration, i think, is starting to show itself. and so i am more optimistic now that it's going to be a lot more difficult than it might have seemed at first blush for president trump and his administration to undo the progress that was made under president obama. i'm thinking in particular of health care but other things as well. well, we'll go in detail through some of
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the things you worked most closely on, of course, obamacare, the affordable health care act, is one of them. butjust in general terms, this idea that the system is very resilient, that needn't necessarily mean trump can't undo so much of what was done by his predecessor. that's certainly true. he's certainly got opportunities to act and he appears to be ready to seize those opportunities. but there are only certain things that he can do unilaterally as the executive without the co—operation of the legislative branch. and even with respect to those, the court system is there as a check. the institutions of civil society and the press are there as a check. so i think it's proving to be a lot more difficult than it might have looked at first blush. well, let's take a specific example. off the bat. and that would be the so—called travel ban. the executive order which trump signed very early on in the presidency, which restricted travel or actually banned travel for a temporary period from seven
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mainly muslim countries. and actually indefinitely banned the incoming syrian refugees. now, the courts have blocked that. they have thwarted it at least on a temporary basis, donald trump and his team are looking at reintroducing a new executive order. he isn't letting go. he is going to get this through, it seems. well, we'll see. i mean, ithink, if you look at what happened out of the gate here, in the first month, with respect to the executive order, it was a combination of two circumstances, i think, that were incredibly infelicitous from the point of view of the executive branch. on the one hand you have an executive order that i think is widely perceived as not being on the level, in the sense that its purported justification was protection of national security. and yet there was no real
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consultation with the national security experts at the department of homeland security. no consultation of any kind with the pentagon, with the result that one of the very first people who was picked up under the travel ban was somebody, an interpreter who had worked in iraq with the united states army and had been promised a visa. well, you might not like the way in which the consultation process worked, but the bottom line is, national security is the president's prerogative. and if he frames this in terms of national security, what right to the courts have to second—guess? what i think that's what i'm trying to get out here. that was, to me, a terrible combination of order that i think was widely perceived as not being on the level in the sense of not being the product of a considered judgment about what was in the national security's interests, combined with an argument to the judiciary that they had no role whatsoever to play in reviewing the president's authority. and i think, had you had a well—considered order that had gone through the normal processes of the executive branch
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of the united states government, with careful consideration of national security issues and diplomatic issues and others, and then had gone to the court, it might have gotten a different reception. but when you put those two things together, it's no surprise at all that the courts reacted the way they have done. and in fact you'll notice that the administration did not even tried to take this order up to the supreme court. and i think that tells you a lot. but one thing i am really intrigued by, and i'd like your perspective as a recently former solicitor general, is the response that donald trump, as chief executive, as president, gave on twitter about the process, and in particular about the courts and the judges involved. for example, one tweet, early on in this farrago, "the opinion of this so—called judge, which essentially takes law enforcement away from our country, is ridiculous. it will be overturned." "i just cannot believe a judge would put our country in such peril. "if something happens, blame him and the court system." what do you make of those public pronouncements from the president? i think it's an unprecedented assault in american history on the independence and integrity of the judicial branch of the government. the judicial branch is there under our constitutional system
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to act as a check on executive power in appropriate circumstances. the president of the united states is not above the law, and to treat the judiciary in that manner, ad hominem attacks, undermining the integrity of the system, it threatens grave damage to our constitutional system. if your boss had tweeted those sorts of messages about the judiciary, what would you have said and done? it would have been, it's unimaginable to me that president obama would have engaged in that kind of ad hominem attack onjudges. had he done so, i would have counselled him in the strongest terms that he needed to take further steps to retract or apologise. and if he didn't do so i would have been in a very difficult position. yeah, it seems to me there's an interesting discussion to be had and i actually want to have it with you about what the point of this solicitor general is. it seems to me, this is my characterisation, correct me if i'm wrong, but you are one of the top in—house lawyers working directly for the white house
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and for the president, representing the federal government. i mean, it is yourjob to make the federal government's case in the supreme court. so you're not exactly an independent voice, are you? it's, you know, it's complicated, stephen. you have to hold two ideas in your mind that in some tension tension with each other. the solicitor general, in particular, and the department ofjustice, the executive branch in general, they've got two functions to play. one is to carry out the legal policy of the administration. when a president gets elected, he's allowed to make judgments about such things as over incarceration, issues like that. you fight his corner, you're his guy! well, it's more complicated than that. that's what i'm getting to. but there's another function too, which is to ensure that the laws of the united states are enforced in a manner that is faithful to the rule of law, that is not and is not seen as being infected by partisanship or by inappropriate personal considerations of the president. and the solicitor general in our system plays a very important
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role in ensuring that that respect for the rule of law is maintained. and that means, sometimes, it's happened with every solicitor general, it certainly happened with me, there were times when the white house wanted us to take a certain position on an issue, and we came to the conclusion that we could not, consistent with our commitment to the rule of law, do so, and we told the white house that we couldn't and they respected it. fascinating. so on what issues? because with so much talk now about the way in which trump is challenging the judiciary, but when it came to these debates are in the obama white house, when did you say, "mr president, you're overstepping the mark." i'll give you one. and it wasn't so much mr president, you're overstepping the mark, but the white house, i think, trying to take something in the direction they thought the president wanted to go. it was this. we had a case, my last term as solicitor general, that involved the status of puerto rico. the commonwealth of puerto rico. whether it ought to be, as a juridical matter, considered to be virtually
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the equivalent of a state and have the same sovereignty as a state, or whether it should be considered a territory subject to plenary regulation by congress. there was enormous pressure for us to take a position that it ought to be a state recognised as equivalent to a state. the commonwealth party in puerto rico was pressuring the white house very strongly with that. the president for that, the president, i think, was inclined to want to help the commonwealth party. that view was communicated to me but i looked at the law, and i thought that under our legal system, congress has plenary authority over territories, puerto rico is a territory. the fact that congress gave puerto rico great autonomy in the past can't permanently disable congress from acting in future, so i said, i can't take that position. so that's kind of thing does happen and has to happen. on an issue like that way you and the white house have a fundamental difference, you're saying, you would have been prepared to walk away, to resign, if the white house had insisted on a course of action which you felt was not in adherence to the constitution?
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yes. i think every solicitor general has to be prepared to do that. so to get back to trump, the talk around washington, dc is apparently that the top nominee pick, the likely pick at the moment to take yourjob, because at the moment it's filled by an acting individual, but the pick may well be a new york senior lawyer called george conway who is the spouse, the husband, of kellyanne conway, who is one of mr trump's senior advisers. given what you've just talked about, the duality of this role of the solicitor general and his need her need to always have in mind the constitution and the balance of powers, would that be appropriate, in your view? george conway is to my knowledge a very able lawyer and i don't want to make anyjudgments about his integrity as a person. i think there are also some other serious contenders for the position. but whether it's george conway or whether it's one of the other contenders for the position, that person is going to have to have the stature and frankly
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the courage to be able to draw the line in appropriate circumstances. and i think in the consideration of who should be nominated for that position and the senate's consideration of who should be confirmed for it because that is a position that requires the senate to confirm, that the need for that person to act with integrity and act with independence, it has to be paramount. and that would be true if it's george conway or if it's anybody else. and i think it would be an appropriate question to ask. partly this debate we are having is about the powers of the presidency in relation to the other branches of the government system in the united states. and we've already referred to this ability the president has to issue executive orders. and you've suggested to me that you think his opening salvo on the so—called travel ban was unacceptable. i've looked at the record. president obama issued 18 executive orders in his first ten days in the white house, which is pretty much comparable to the 20 that came from donald trump.
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so obama used the powers of the presidency it seems in pretty much the same way that donald trump is. i would take issue with that last phrase there, "in pretty much the same way". to begin with, you didn't see anything like what happened with the travel ban executive order in that first period under president obama. none of those executive orders, which were carefully considered for many months in advance... fair point, of course, that's specific. but you could take other executive orders issued by president obama which you ended up having to fight in the supreme court, to defend in the supreme court, i'm thinking of one crucial case which you lost, which was all about immigration and the status of immigrants. sure. and obama used an executive order to try to offer respite from the threat of deportation to roughly 4 million immigrants who are long—term, some of whom had arrived as children. now it's quite complicated but in essence, you afford that case in the supreme court against the state of texas and,
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i believe, 26 states, in all who said that obama's executive order undermined the right of congress to lay down the law on these matters of immigration. and the supreme court was tied, but ultimately... it was a tied vote! i knew that! but ultimately that tie meant that the court system upheld the view, the judgment that originally came out of texas. you lost. but let's focus first on process. i think this is a vital, vital point. compare the process for president trump ‘s executive order with the process that preceded the issuance of the... it wasn't actually an executive order by president obama, it was guidance from the secretary of homeland security. the significance was pretty much the same. but that order was the result of years of study. it was the subject of a thorough and detailed analysis by the department of justice office of legal counsel, which is the office in the department that weighs in on the legality of executive
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branch actions that produced a 30—page memo analysing legality and confirming that, in their view, the president had this authority. it was a closely contested matter, and i think we all understood that. and we acted, and the president acted and i defended the president's actions, against the backdrop of the inability of a legislator branch to deal with a problem that everybody understands to be a real, and substantial problem. those 4 million people weren'tjust 4 million people who had been in the united states for a long period of time, they were the parents of american citizen children. every one of those 4 million, in order to qualify... with respect, that is not really the point. the point is, who has the power to decide their fate? the president was adamant that he did, but the congress was adamant that ultimately this was a congressional matter. i'm just going to quote to you the republican charles grassley, senior member of the senate, judiciary committee chairman.
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he said, look, i agree that the immigration system needs revamping but circumventing congress and attempting to rewrite immigration law simply because you couldn't get your way is unlawful and contrary to our fundamental checks and balances. right. and this is not trump we're talking about, this is obama. this is your boss and on your watch. the republicans said that about a lot of things that the obama administration did, including the healthcare law. which the supreme court upheld. now, of course, this went to the supreme court as a result of the tie vote. it was invalidated but look what president obama did in the wake of that. there was no comment about "so—called judges". there was no comment about blaming the judiciary for the negative fallout that would happen as a matter of social policy, none of that. it was a fundamental difference, i would submit, in respect for the checks and balances of our system. presidents do exercise their authority and they sometimes exercise and aggressively and that's part of the nature of our system.
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but part of the nature of our system is also respecting the checks when the other branches of government exercise their authority. let's talk about a few cases which to me signify the deep partisan politicisation of the law in the united states today. let's start with the one you just mentioned, obamacare. you fought that, a very famous case, to the supreme court in 2012, you'd defended obamacare. it's kind of complicated, the specific case, but in essence the whole policy was on trial. twice, actually. 2012 and 2015. that's right. the policy was on trial and you won in the supreme court. but that didn't get away from the fact that what you saw in the legal arguments was, as i say, this partisan politicisation of the law. and we can talk about other cases as well. isn't that what is happening in the united states today? well, i think in fairness, the supreme court, and chiefjustice roberts, and the other members of court are struggling hard to push back against that. and i think as solicitor
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general i was very cognisant of that trend, and very worried about it and tried in my own way to push back as well, and with respect to health care in particular, i tried to frame those arguments very carefully in terms that were not about partisan politics and politicisation but were instead about the appropriate role of the democratically accountable branches of government, the executive branch and the congress, and the courts. and that when you have a considered judgment of the democratically accountable branches of government that this is the appropriate social policy, done after very thorough investigation and very thorough consideration, representing the will of the people, expressed through the legislative process, that the courts ought to be very deferential in those circumstances. so that was an effort to actually drain the partisanship out of the argument and talk about structural factors under our constitution. but that is just the way it looks to the american people, isn't it? well, it's a shame because, at the end of the day, although i can't get inside the mind of the chiefjustice, i do think his vote to uphold the law was very
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likely based on his sense that that was correct. sure, but he had the casting vote, and in that one he went on your side. but the bottom line is this supreme court and even more right now that it's an eight—person court, because the ninth nominee hasn't yet been confirmed. but the point is, the supreme court does appear to be split. and because of the system, where the president gets to nominate a replacement when one of thejustices no longer serves, it is constantly the subject of political gamesmanship, isn't it? it's very unfortunate, you've accurately summarised the public perception, i completely agree with you that that's the perception. i think it's a terrible shame. i think it's actually be lied to a significant measure by the reality. —— belied. if you think about it, the supreme court in front of which i argued was, by all historical measures, one of the most conservative supreme courts in american history, in terms of its ideological orientation. and yet the obama administration, while we lost a couple of big cases, one of which you focused on, immigration...
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and the other one i wanted to talk about was voter registration, which was a huge case which again was deeply partisan. because in essence, to outsiders, it looked like the southern states were fighting for the right to impose rules on elections which they seemed to have carefully calibrated to make it more difficult for minorities to go to the polls and vote. let me get to that. i'lljust finish the other point. in addition to healthcare and marriage equality there were a whole series of issues on which the obama administration prevailed front of the conservative supreme court. which i think tells you that it is actually in practice more anchored in the rule of than in partisanship. despite the perception. it is possible that you're just a wild optimist, and there was a holdover ofjustices from a previous period of democratic presidents and that that holdover won't last much longer! we've got neil gorsuch coming in, and i suppose, looking forward rather than quarterbacking all the decisions that you were involved in, looking forward, one can see now, there is a possibility of a long—term fight over, for example, roe v wade, a woman's right to have an abortion in the united
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states, which could preoccupy the court and indeed america for the next four or eight years. could happen. i do think, assuming that judge gorsuch becomes justice gorsuch, and goes on the court... a very solid conservative, down the line conservative judge. ..yes. but i think that will restore the court roughly to the equilibrium that existed when justice scalia was on the court, in other words, the court i argued in front of, that i was just describing. i think the real question will, and i do think you're quite right, issues about roe against wade reproductive freedom, issues that might come before this court, but the court that i argued in front of resolved those issues in a certain way, given that composition. i think the real key will be if one of the four so—called liberal justices steps down, or passes away, and that could lead to a fundamental shift in thejurisprudence and in the kinds of issues that come before the court and the resolution of them.
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but i think it's going to take that second appointment for that to happen. but we are talking about four years of donald trump, possibly eight years of donald trump. he has made it plain that he will only, to use his words, appoint pro—life justices. so the likelihood is that america is going to re—fight this battle and perhaps other hot button, social—conservative battles. it's quite possible. but, you know, sometimes the court does surprise you. and i think the consideration of race in university admissions, a formative action, there you have the supreme court withjustice kennedyjoining the liberals this past term upholding the constitutionality of that, which is just one of these better hot button partisan issues that divide the country. and that was, i think, in large measure because they decided that they wanted to let society rest, leave this where it is, don't reopen this old wound. so you don't always know for sure. before we end, i do want you to reflect on the significance of one other of your most famous
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moments, before the supreme court, as the government advocate. and that was your making of the case for the legalisation across the nation of same—sex marriage. 30 years ago, that would have been unthinkable. but it's reality today in the united states. so what does that, do you think, tell us about change in america? i think what it shows is that a phrase like "equal protection of the laws" is something that, what constitutes equal protection of the law, equal protection before the law, is going to be influenced by society's understandings of itself. and with respect to gay and lesbian people in particular of the place of gay and lesbian people in society. i think that what the court's decision did was nothing more than reflect the fundamental transformation in american society that had occurred. do you think we are facing over the next four years a long—term concerted and intense battle
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between the executive branch and the judiciary? i think we could well be — i think we could well be. and how dangerous could that be? quite dangerous. because, the way our system of government works, the idea of checks and balances is absolutely integral to the system. there are three ways in which the power of the executive, which otherwise could be quite formidable, is checked. one, to the legislator process, not so much going on there now. second, through the press. you see with respect to the press and civil society that there's already an organised effort to undermine the legitimacy of the press as a watchdog and a cheque, and the third is thejudiciary. and you can see at least in this initial burst of statements from president trump that he is focused on the same way he is with respect to the press, in undermining the legitimacy of the judiciary as a check on executive power. now it's only been a month. maybe things will settle and we returned to a more normal equilibrium in our system but based on this first month i think you really have to be concerned. donald verrilli, we have to end there, but
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thank you for being on hardtalk. thank you. i enjoyed it. thank you very much indeed. if the truth were known, i could have put up any variety of globes you might have liked to try to describe just how varied the weather has been, as we start the new weather week. but, as ever, our weather watchers have captured it for us. and you'll notice here that monday ended on quite a wintry note across parts of scotland. when you see the big picture, you will understand, i hope, just why we've got such a variety of weather on offer at the moment — low pressure never very far away.
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but, even in the midst of all of that cloud and rain, well, the skies are a wee bit clearerfor some, and that is why the temperatures willjust dribble away in the first part of tuesday, to the extent that ice will be quite a problem. if the surface that you happen to be travelling on has not been treated, just bear that one in mind. there could well be some patches of fog around, as well. even this stage, we've got another little area of low pressure just dragging some bands of cloud and rain into the western side of scotland, into parts of northern ireland as well. do bear in mind what i say about the ice risk, really quite extensive, save, perhaps, for this far south—eastern quarter. but even then, you've got one or two showers that mayjust have some wintriness about them. but for the most part, a lot of decent, fine, settled weather here to start your day. but don't bank on it lasting, because that area of cloud and rain, with some wintriness across the higher ground, just slumps its way east, and leaves behind a legacy of rather wet and dull weather across the north—west and through the north of wales. so a pretty miserable day here, never warmer than about five
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or six degrees. through the evening and overnight, it will take that band of weather ever—further towards the south and east. the skies clear again, for a time, for many. the winds begin to die off a bit. good conditions for a wee touch of frost, again, on the first part of wednesday. wednesday marked by another dry start across the heart of the british isles, but notice this — another area of cloud and rain just working its way into the southern counties of england and wales. and it may have just a wee bit of wintriness on the high ground of wales and as we get up into the midlands. now, by thursday, the isobars have a little bit of a ridge in them, trying to kill off some of those showers, for some, at least. but you will notice we have also got a bit of a finger of rain there, as well, right through the heart of the british isles. so, again, something of a mixture. many will view thursday as perhaps one of the better days of the week. but by friday, and indeed on into the weekend, we start to cloud things up again, and there will be more bouts of rain. and that is how we play out the rest of the week.
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day—to—day changes, a little bit of rain and some sunshine, and for some in the north, just that risk of some snow. hello you're watching bbc world news, i'm adnan nawaz. our top story this hour: the formal inquest into the killing of 30 british tourists at a tunisian holiday resort concludes later today. despite evidence that police delayed their response to the attack, the inquiry won't rule that neglect contributed to their deaths. welcome to the programme — our other main stories this hour... president trump calls for a ten per cent rise in american military spending — and cuts elsewhere to pay for it. and fly them to the moon. the era of private lunar orbit is about to begin, so long as you have the money. i'm sally bundock. in business, the cost
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of the nationwide cash withdrawal —
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